On April 17, 2012, the U.S. Court of Appeals for the District of Columbia Circuit (the "D.C. Circuit") issued a preliminary injunction that temporarily enjoined the National Labor Relations Board ("NLRB") rule that would require employers to post an NLRB-authored notice advising employees of their rights under the National Labor Relations Act. See Sept. 8, 2011, Bingham alert. The NLRB rule would require virtually all U.S. employers to post the NLRB-authored notice by April 30, 2012. For now, employers can stand-down; soon after the D.C. Circuit’s decision, the NLRB issued a press release advising that the regional NLRB offices will not implement the rule pending the resolution of the issues before the court.
It is difficult to predict whether the NLRB rule will ultimately survive judicial review. The two lower courts that considered challenges to the NLRB rule reached different conclusions as to its validity. In a challenge brought in federal court in the District of Columbia, the district court recognized the NLRB’s authority to require employers to post the notice, but found that it exceeded this authority by declaring that the failure to post the notice constituted an unfair labor practice and would result in the tolling of the statute of limitations for unfair labor practices. In a separate case brought in federal court in South Carolina, the district court found that the NLRB rule was entirely unlawful.
Although the NLRB-authored notice remains available on the NLRB's website,employers should stand by and wait for the D.C. Circuit to take further action before posting it. We expect that it will be several months before the legal issues are resolved. Although the D.C. Circuit set the matter down for an expedited briefing schedule, the court will not hear oral argument until September 2012. Thus, the issue will not be resolved until the mid-to-late fall of 2012 at the earliest. We will keep employers posted as to any new developments with respect to this issue.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:Adkins-John
This article was originally published by Bingham McCutchen LLP.